CIV/APN/53/05

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MASUPHAAPI
Applicant

AND

LIMAKATSO
(TSETSE) API 1st Respondent

M.K.M
FUNERAL SERVICE 2nd Respondent

COMMANDER
OF LESOTHO DEFENCE FORCE 3rd Respondent

ATTORNEY
GENERAL 4th Respondent

JUDMENT

Delivered
by the Hon. Mr. Justice G. N. Mofolo On the 10th day of March. 2005

This is a
case in which the applicant approached this court on an urgent basis
to have him declared as lawful heir of the deceased
Tsotang Robert
Api; for the applicant to make arrangements, with the family, for the
place and date of deceased's burial; 3rd respondent
to release
benefits due to deceased to the applicant according to custom; 1st
and 2nd respondent to be restrained from releasing
the body other
than to the applicant. The application was opposed and when it came
before me for argument counsel agreed that all
that has to be decided
was deceased's burial place in view of

the fact
that the deceased had left instructions that he be buried at his
birth place at Ramabanta's. Counsel gave the court an
unmistakable
impression that by virtue of applicant being heir to the deceased he
was, in law, entitled to bury the deceased in
consultation with
members of the family.

Several
witnesses have deposed to the fact that it was deceased's wish that
he be buried, on his death, at Thetsane's, Maseru. Mr.
Phoofolo for
the applicant has, however, submitted that it was strange that the
deceased had intimated to some people of his wish
to be buried at
Thetsane's when he hadn't intimated this to his son the applicant
with whom, on the face of it, relations were
cordial. Mr. Phoofolo
also attacked communications by deceased to depositories of
affidavits as highly suspect material deserving
to be tested for
without viva voce evidence the court would not decide on the
credibility of the deponents. The application for
conversion of the
application to hear viva voce evidence was however refused. The
reason for the refusal of the application was
based primarily on the
fact that according to counsel, the deceased has been lying in the
mortuary for now two months and the court
was loath to prolong the
period by calling for viva voce evidence.

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It was
applicant's case that deceased was married to his mother, a divorce
launched but not completed and in the meantime deceased
had married
the 1st respondent. It turned out that the deceased and applicant's
mother were divorced and on divorce deceased had
married 1st
respondent with whom he lived at Makoanyane barracks where deceased
worked. It was 1st respondent's case that although
they lived at
Makoanyane barracks they had a home at Thetsane's where deceased
wished to be buried. Before me, Mr. Phoofolo made
mincemeat of 1st
respondent's case saying that yes there were flats at Thetsane's but
these were hired flats and 1st respondent
could not claim this as her
house.

It was
the court's view that if 1st respondent lived in hired flats at
Thetsane's this could not be deemed as home; on the contrary
if 1st
respondent or for that matter she had a home at Thetsane's,
irrespective of whether it was a hovel, this counted as a home
for it
demonstrates deceased's intention as to his residence. Talking about
residence, the fact that deceased lived at Makoanyane
barracks does
not in the least denote his residence for purposes of burial for
Makoanyane barracks is temporary residence dependent
on deceased's
terms of service. The court along with applicant's and 1st
respondent's counsel had gone to Thetsane on an

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inspection-in-loco
and there the court had found a three-roomed house with an extended
foundation intended to augment the existing
building. In the existing
house lived 1st respondent's (deceased's) herdboy and some other
tenant though not on rental basis. There
was also a structure deemed
a kraal which housed 1st respondent's (deceased's) animals being 3
cows. In the yard a toilet was also
undergoing construction. It was
agreed that the three-roomed house, the extended foundation thereon,
animal structure and yard
were the property of the deceased.

When the
court returned to court results of the inspection-in-loco were read
and admitted by counsel with Mr. Phoofolo deciding
that having regard
to the fact that deceased had a permanent home at Thetsane's it shows
that his intention was to reside at Thetsane's
and it was only fair
that he be buried at his home.

The court
had consequently dismissed the application and ordered that the
deceased be buried at Thetsane's by the applicant in consultation

with member of the family including the 1st respondent. As for costs,
on account of applicant and 1st respondent having both succeeded
and
failed and the

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contest
being a family matter, it was ordered that there be no order as to
costs.

I am to
make it patently clear that what this court has decided in this
application is solely and exclusively the burial place of
the
deceased.

G.N.
MOFOLO

JUDGE

For the
Applicant: Mr. Phoofolo

For the
1st Respondent: Mr. Phafane

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